The main objective of the safeguards is to protect the public and the legal assets of persons from dangerous persons committing criminal offences against whom criminal penalties, criminal measures or other criminal offences are prevented or insufficient for various reasons.
The concept of a protective measure was developed in the 19th century. It was formulated by the founder of the Italian positive school Cesare Lombroso. It was introduced into the criminal codes of the individual legal systems in the late 19th and early 20th centuries.
These safeguards are different from penalties and other criminal measures, which do not constitute a necessary element for their application. Their task is to counter the future negative actions of the person to whom they are judged, with a duly motivated belief that such action may occur.
"The modern role of safeguard measures is much less than initially assumed, and they are used very rarely under tax criminal law." [1].
Safeguard reform (2015)
Reform of protective measures carried out by a novel of the Criminal Code [2] on 20 February 2015 was then transferred to the grounds of the Tax Penal Code [3] by Article 20(2) KKS. The new provisions 93b-93g KK have standardized the general rules and conditions for deciding on protective measures, in order to ensure that these measures are not misused in a way inadequate to the individual needs of the perpetrator, such as placing in a psychiatric institution against trivial acts. These general principles include:
- - the principle of necessity (also called the principle of necessity) — indicating that a safeguard measure may be decided by a court where it is necessary to prevent the perpetrator from re-imposing [4],
- - the principle of ultima ratio – providing that protective measures may be used when other legal measures are insufficient[5],
- - proportionality principle – the safeguard measure should be appropriate to the degree of social harm and the likelihood that the perpetrator commits in the future [6],
- - the principle of cumulation of safeguards [7],
- - the principle of deciding on safeguard measures for an indefinite period [8],
- - the principle of the possibility of modifying the measures declared or their implementation [9]
The ruling of such protective measures is provided for persons who are insane or are of limited capacity, as well as those convicted of an offence committed in connection with an alcohol or other drug addiction (in particular a narcotic or a similar measure)
Catalogue of protective measures
However, a list of protective measures to be imposed for tax offences has been identified autonomously. Of which, in the case of offences, the only said protective measure is the forfeiture of objects [10]. The list of criminal protection measures is as follows:
- - electronic location control,
- - therapy,
- - addiction therapy,
- - stay in a mental institution,
- - loss of objects,
- - the prohibition of certain economic activities, the pursuit of a particular profession or the taking of a particular post.
These measures are divided into two categories. Medicinal products would include, among others, therapy, addiction and stay in a psychiatric facility, while the other measures were considered as non-medical or administrative.
Most of them do not require a thorough explanation, but this does not apply to the loss of objects. It includes both objects coming directly from fiscal criminal offence as well as tools and other objects which constitute movable property to commit this fiscal criminal offence or objects whose manufacture, possession, marketing, storage, transport, transfer or transfer is prohibited. Also, packaging or object linked to the subject of the crime in an inert manner may be subject to forfeiture [11].
The decision of such a measure may only be made against the offences provided for in the Code. Their list can be found under Article 30 KKS. This provision is an expression two fundamental principles of constitutions expressed under Article 46 Constitution of Poland[12] concerning the possibility to rule on the forfeiture of goods, i.e.
the decision in connection with the commission of a criminal tax offence and the exclusivity of the court in the judgment, whether optional or compulsory. It is also worth mentioning that, in some cases, the court may decide to apply such a measure even if the object was not the object of the perpetrator.
However, as mentioned above, the use of such a penalising agent as a protective measure is only possible in certain cases, as indicated under Article 43 KKS, meaning:
- - committing an act in a state of insanity,
- - the negligible social damage of the act,
- - when the offender was subject to parole discontinuance of proceedings criminal
- - there is a circumstance that excludes punishment for the offender
- - the perpetrator is In the first year of criminal adulthood (i.e. between 17. a 18. years of age) and it was therefore decided to treat him as a minor,
It is also worth mentioning that there is a disunity in doctrine regarding the views which the circle of accidents represents a circumstance that excludes the offender from being punished with the loss of objects as a means of safeguarding. It is only doubtless that such circumstances are statutory non-criminal (e.g. by submitting voluntary disclosure) and when the criminality of the act has expired.
Bibliography:
- [1] M. Kurzyński Criminality in Tax Penal Law – Selected Degressions of Punishment, Olsztyn 2016 p. 81
- [2] Act dated 6 June 1997 Criminal Code (i.e. Journal of Laws of 2019, item 1950 as amended, Next: KK)
- [3] Act dated 10 September 1999 Tax Penal Code (i.e. Journal of Laws of 2020, item 19 as amended, Next: KKS)
- [4] Article 93b(1) KK
- [5] ibididem
- [6] Article 93b(3)(1) dd. 2 KK
- [7] Article 93b(4) KK
- [8] Article 93b(1) KK
- [9] Article 93b(3) dd. 2 KK
- [10] Article 47(4) KKS
- [11] Article 29 KKS
- [12] Constitution of the Republic of Poland of 2 April 199 r. (Journal of Laws, item 483 as amended)
Author: Damian Kuszewski
The author is a graduate of the Warsaw School of Economics in Finance and Accounting, and is currently a law student at SWPS. From 2018 Associated with Russel Bedford Poland. His professional interests are tax law and, in particular, income taxes.